Etho Service Agreement

Etho Service Agreement

This Software as a Service Agreement is made upon date of signed agreement (the “Effective Date”) between Etho with its principal place of business at 13150 Coit Rd Suite 304, Dallas,
TX 75240 (“Etho”) and PARTNER, with its principal place of business at {PARTNER location} (“PARTNER”). 

(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)  

Grant of License to Access and Use Service. Etho hereby grants to PARTNER, including to all PARTNER‘s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty- free, and worldwide license to access and use the Etho Web Application (the “Service”) solely for PARTNER‘s internal business operations. 

Support Services

Initial Support. For the agreed-upon access period beginning on the Effective Date, and at M4P‘s own expense, M4P shall provide PARTNER with full access to the Customized PARTNER Etho Application to manage performance of PARTNER users. 

Renewed Access. After the initial agreed-upon access period, PARTNER may elect to renew Etho‘s services under this paragraph [ACCESS] for additional [12+] month periods, at Etho‘s then-current service rates by providing Etho prior written notice of PARTNER’s intent to renew M4P’s services. 

Payment. PARTNER shall pay the full implementation Fee and one (1) month of the Etho Software Subscription upon receipt of invoice, by one of two methods: 

1. Automated Clearing House (ACH)  
2. Credit Card

    

   Service Levels
   Applicable Levels. M4P shall provide the Service to PARTNER with a System Availability of at least [98]% during each calendar month. 

System Maintenance. Etho may take the Service offline for scheduled maintenances that it provides PARTNER the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and change its schedule of maintenances upon 1 month prior written notice to PARTNER. 

System Availability Definition

Percentage of Minutes per Month. “System Availability” means the percentage of minutes in a month that the key components of the Service are operational. 

Not Included in “System Availability. “System Availability” will not include any minutes of downtime resulting from: 

• Scheduled maintenance;  
• Events of force majeure; 
• Malicious attacks on the system;  
• Issues associated with PARTNER‘s computing devices, local area networks, or internet service provider connections; or 
• M4P‘s inability to deliver services because of PARTNER‘s acts or omissions. 

Data Protection. PARTNER shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party’s Data. 

Data Privacy. Etho may collect, use and process PARTNER data only according to Etho‘s Privacy Policy, available at https://performancescoring.com/privacy-policy/. 

Back-Up Data. On PARTNER‘s request and payment of $1250 per copy, M4P shall deliver to PARTNER a full back-up of PARTNER‘s Data, in a format the parties agree on in writing. 

Statistical Information. M4P may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service, but only if such information does not identify the data as PARTNER‘s or otherwise include PARTNER‘s name. 

Representations

Mutual Representations 

Existence. The parties are corporations or public entities incorporated and existing under the laws of the jurisdictions of their respective incorporation. 

Authority and Capacity. The parties have the authority and capacity to enter into this agreement. 

Execution and Delivery. The parties have duly executed and delivered this agreement. 

Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms. 

No Conflicts. Neither party is under any restriction nor obligation that the party could reasonably expect might affect the party’s performance of its obligations under this agreement. 

No Breach. Neither party’s execution, delivery, nor performance of its obligations under this agreement will breach or result in a default under its articles, bylaws, or any unanimous shareholders agreement, any Law to which it is subject, any judgment, Order, or decree of any Governmental Authority to which it is subject, or any agreement to which it is a party or by which it is bound. 

Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to own, lease, and operate its properties, and conduct its business as it is now carried on. 

No Disputes or Proceedings. There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement. 

No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up. 

Etho‘s Representations 

IP Disclosure Schedule. Etho‘s Disclosure Schedule lists any exceptions to its representations. 

Ownership. Etho is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under the Etho Application. 

Status of Licensed Intellectual Property. Etho has properly registered and maintained all Intellectual Property included in the Service and granted under the Etho Application and paid all applicable maintenance and renewal fees. 

No Conflicting Grant. Etho has not granted and is not obligated to grant any license to a third party that would conflict with the Etho Application or this Agreement. 

No Infringement. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party. 

No Third Party infringement. To Etho‘s Knowledge, no third party is infringing the Service. 

User Obligations

Hardware Obligations. PARTNER shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying any reasonable third party access charges incurred while using the Service. 

Anti-Virus Obligations. PARTNER shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”). 

PARTNER‘s Use of Services. PARTNER shall abide by all local and international Laws and regulations applicable to its use of the Service, use the Service only for legal purposes, and comply with all regulations, policies and procedures of networks connected to the SaaS. 

Restricted Uses. PARTNER will not knowingly: 

1. Upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service;
2. Modify, disassemble, decompile or reverse engineer the Service;

   3. Probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service 4. Take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service;
   5. Copy or reproduce the Service;
   6. Access or use any other clients’ or their users’ data through the Service;  
   7. Maliciously reduce or impair the accessibility of the Service; 
   8. Use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material; or 
   9. Transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability. 

Confidentiality Obligations. The parties shall continue to be bound by the terms of the non- disclosure agreement between the parties to the extent permitted by law, dated [DATE] and attached to this agreement on [ATTACHMENT]. M4P agrees it shall abide by all applicable laws, rules, regulations, and PARTNER policies as to the handling of confidential information and personally identifiable information.  

Export Compliance

PARTNER Status. PARTNER represents and that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed the import or export of goods, on the United States Treasury Department’s List of Specially Designated Nationals or United States Commerce Department’s Table of Deny Orders. 

Term. This agreement begin upon execution, and will continue until terminated (the “Term”). 

Ownership of Intellectual Property. Etho will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including Etho‘s name, logos. and trademarks reproduced through the Service. 

Termination

Termination on Notice. Either party may terminate this agreement for any reason upon 90 business days’ prior written notice to the other party. 

Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if: 

1. The other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations; and

   2. The failure, inaccuracy, or breach continues for a period of 30 business days after the injured party delivers notice to the breaching party reasonably detailing the breach. 

Termination for Failure to Pay. M4P may terminate this agreement with immediate effect by delivering notice of the termination to PARTNER if PARTNER fails to pay the Subscription Fee when due and after receiving an invoice [three] times over any 36 month period. M4P may restrict access to the Etho Application during periods of payment delinquency. 

Effect of Termination 

Pay Outstanding Amounts. PARTNER shall immediately pay to Etho all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination. 

Discontinuance of Use. PARTNER shall cease all use of the Service upon the effective date of the termination. 

Recovery of Data. PARTNER will have 30 days from the date of termination to retrieve any data that PARTNER wishes to keep. Within ten (10) business day of request from PARTNER to Etho, Ethoshall return any PARTNER within its possession.  

Indemnification

Indemnification by Etho

Indemnification for Infringement Claims. Subject to paragraph [EXCLUSIONS], Etho (as an indemnifying party) shall indemnify PARTNER (as an indemnified party) against all losses and expenses arising out of any proceeding brought by a third party, and arising out of a claim that the Services infringe the third party’s Intellectual Property rights. 

Qualifications for Indemnification. Etho will be required to indemnify PARTNER under paragraph [INDEMNIFICATION FOR INFRINGEMENT CLAIMS] only if: 

1. PARTNER‘s use of the Services complies with this agreement and all documentation related to the Services; 

1. The infringement was not caused by PARTNER modifying or altering the Services or documentation related to the Services, unless Etho consented to the modification or alteration in writing, and 

1. The infringement was not caused by PARTNER combining the Services with products not supplied by Etho, unless Etho consented to the combination in writing. 

Mutual Indemnification. To the extent permitted by the Constitution and laws of the State of Texas, each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by either a third party or an indemnified party, and arising out of the indemnifying party’s willful misconduct or gross negligence. 

Notice and Failure to Notify 

Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall: 

1. notify the indemnifying party of the indemnifiable proceeding; and 

1. deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding. 

Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure. 

Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section [INDEMNIFICATION]. 

Limitation on Liability

Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement. 

Maximum Liability. Etho‘s liability under this agreement will not exceed the fees paid by PARTNER under this agreement during the 12 months preceding the date upon which the related claim arose. 

General Provisions 

Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement, 

1. represent the final expression of the parties’ intent relating to the subject matter of this agreement; 

1. contain all the terms the parties agreed to relating to the subject matter; and 

1. replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement. 

Amendment. Etho may amend the terms and conditions of this agreement at any time upon reasonable prior written notice to PARTNER setting forth the revised terms and conditions and where the amended terms and conditions may be found. 

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent. 

Notices

Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section. 

Receipt of Notice. A notice given under this agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it or the fifth business day after mailing it. 

Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of Texas, without regard to its conflict of laws rules. 

Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable. 

Waiver

Affirmative Waivers. Neither party’s failure nor neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights. 

Written Waivers. A waiver or extension is only effective if it is in writing and signed by both parties. 

No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights. 

No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy. 

Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations. 

Relationship of the Parties

No Relationship. Nothing in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties. 

No Authority. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner. 

Cooperation. PARTNER will reasonably cooperate with any of the Manage 4 Performance’s investigation of Service outages, security problems, and any suspected breach of the Agreement. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. 

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. 

Definitions

“Authorized Users” means the list of Persons authorized to use the Services under this agreement. 

“Business Day” means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in Aubrey, Texas are not open for business. 

“Confidential Information” has the same meaning in this agreement as the term has under the Non-Disclosure Agreement between the parties, dated [DATE], referenced in section [CONFIDENTIALITY OBLIGATIONS] and attached to this agreement. 

“Data” means all of the data PARTNER creates with or uses with the Service, or otherwise related to PARTNER‘s use of the Services. 

“Disclosure Schedule” means the schedules delivered, before the execution of this agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party. 

“Effective Date” is defined in the introduction to this agreement. “Governmental Authority” means 

 (a) any federal, state, local, or foreign government, and any political subdivision of any of them, 

(b) any agency or instrumentality of any such government or political subdivision, 

(c) any self-regulated organization or other non-governmental regulatory authority or quasi- governmental authority (to the extent that its rules, regulations or orders have the force of law), and 

(d) any arbitrator, court or tribunal of competent jurisdiction. 

“Intellectual Property” means any and all of the following in any jurisdiction throughout the world 

(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, 

(b) copyrights, including all applications and registrations related to the foregoing, 

(c) trade secrets and confidential know-how, 

(d) patents and patent applications, 

(e) websites and internet domain name registrations, and 

(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing). 

“Law” means 

(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and 

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law. 

“Legal Proceeding” means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing). 

“Order” means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final. 

“Permits” means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party’s business. 

“Person” includes 

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and (b) any individual. 

“Service” is defined in section [GRANT OF ACCESS AND USE OF SERVICE].  

“Subscription Fee” is defined in section [SUBSCRIPTION FEES]. 

SELECT APPROPRIATE DEFINITION LOCATION] “System Availability” is defined in [section [SERVICE LEVELS]. 

“Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value- added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise. 

“Term” is defined in section [TERM]. 

“Viruses” is defined in section [USER OBLIGATIONS].